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Walker ATF Arcana Trust v Waterfront Agents Pty. Ltd. QCATA 98
QUEENSLAND CIVIL ANDADMINISTRATIVE TRIBUNAL
Walker ATF Arcana Trust v Waterfront Agents Pty Ltd  QCATA 98
WILLIAM WALLACE WALKER AS TRUSTEE FOR ARCANA TRUST
VICTORIA SIMONE WALKER AS TRUSTEE FOR ARCANA TRUST
WATERFRONT AGENTS PTY LTD
ORIGINATING APPLICATION NO/S:
3 July 2019
On the papers
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – OTHER CASES – where allegation of denial of natural justice – where Tribunal has mandate to deal with matters quickly – where appellant given opportunity to present case – where evidence capable of supporting findings
APPEAL AND NEW TRIAL – LEAVE TO APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where Tribunal failed to provide adequate reasons for decision – where appellant raised allegations and gave evidence about conduct surrounding transaction – where no findings made about conduct surrounding transaction – where findings about conduct surrounding transaction important because they could vitiate otherwise binding contract – where parties must be satisfied that Tribunal has given them answer to their issues – where failure to give adequate reasons amounted to denial of procedural fairness – where error of law for which leave should be granted to correct substantial injustice
Property Occupations Act 2014 (Qld), s 165
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 28, s 121, s 143
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Body Corporate for Rosegum Villas v QBCC  QCATA 125
Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39
Cachia v Grech  NSWCA 232
Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291
Creek v Raine & Horne Mossman  QCATA 226
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388
Hayward & Anor v LJ Hooker Longreach  QCATA 221
Kioa v West (1985) 159 CLR 550
Lloyds Bank Ltd v Bundy  QB 326
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577
Mistero Pty Ltd v Cann  QCATA 56
Phu v NSW Department of Education and Training  NSWADTAP 76
Piric & Anor v Claudia Tillier Holdings Pty Ltd  QCATA 152
QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41
Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe  QCATA 212
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
What is this appeal about?
- On 4 July 2018, the Tribunal constituted by two Justices of the Peace dismissed an application by William Wallace Walker and Victoria Simone Walker as trustees for Arcana Trust for Waterfront Agents Pty Ltd to refund a deposit of $2,000 they paid to purchase a unit. Mr and Mrs Walker want to appeal that decision.
- Because this is an appeal from a minor civil dispute, leave is required.
- In determining whether to grant leave, the Tribunal will consider established principles including:
- (a)whether there is a reasonably arguable case of error in the primary decision;
- (b)whether there is a reasonable prospect that the appellant will obtain substantive relief;
- (c)whether leave is needed to correct a substantial injustice caused by some error; and
- (d)whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.
- I will address the grounds of appeal below.
Should the Tribunal grant leave to appeal?
- Most of Mr and Mrs Walker’s grounds of appeal seek to reargue their case. Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence. A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case. An application for leave to appeal is not, and should not be an attempt to reargue a party’s case at the initial hearing. The appeal process is not an opportunity for a party to again present their case. It is the means to correct an error by the Tribunal that decided the proceeding.
- Similarly, Mr and Mrs Walker’s ground of appeal that they were denied procedural fairness because they were not asked whether they agreed to Waterfront’s personal assistant attending the hearing and giving evidence, not being asked to question Waterfront and being surprised by Waterfront’s new evidence at the hearing has no basis.
- This is because although the Tribunal must observe procedural fairness, this is a flexible notion that must be commensurate with the nature and demands of the jurisdiction – it is a matter of construction of a particular statutory power. The requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal.
- The Tribunal’s statutory mandate to conduct proceedings in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice, is at its most acute in the busy and demanding minor civil disputes jurisdiction, where tens of thousands of applications are processed and determined each year. Within this context, the Tribunal is not bound by the rules of evidence, and may inform itself in any way it considers appropriate. The learned Justices asked questions of both parties and gave them an opportunity to present their case. That is an entirely appropriate exercise of their inquisitorial powers in the minor civil disputes jurisdiction.
- The minor civil disputes jurisdiction requires the Tribunal to deal with matters fairly, quickly and economically. This means that parties may not be aware of all of the material relied upon by their opponent before the hearing.
- Mr and Mrs Walker’s submissions about the findings of fact made by the learned Justices are not a basis to grant leave to appeal. The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions. An appellate tribunal may only interfere if the conclusion is ‘contrary to compelling inferences’ in the case. The evidence is able to support the learned Justices’ findings of fact that:
- Mr and Mrs Walker signed a contract to purchase the property; and
- Mr and Mrs Walker were aware of the penalty to be paid to cancel the contract during the cooling-off period.
- Specifically, Mr and Mrs Walker submitted that the use of the initial word ‘may’ in the penalty notice was misleading because they were then told they ‘must’ pay the penalty. The wording of the penalty notice is provided by statute. The policy rationale is to ensure buyers are aware of the risk of a penalty should they seek to terminate the contract during the statutory cooling-off period. ‘May’ in this context means the penalty is payable by the buyer at the election of the seller. There is no basis to displace the learned Justices’ finding about Mr and Mrs Walker’s awareness of the penalty to be paid during the cooling-off period.
- The Tribunal must give reasons for its final decision:
Those reasons need not be elaborate, but they must contain three essential elements: appropriate and sufficient evidence to the relevant evidence; the material findings of fact that were made (and the reasons for making those findings); and the applicable law and the reasons for applying it in the way expressed in the decision. It has also been said, in Queensland, that the crucial element is for the Tribunal to give reasons which disclose what has been taken into account in a way that means any error is revealed.
- While it is understandable that the learned Justices sought to deliver reasons with economy and brevity, the emphasis on expedition and informality does not allow the Tribunal to pursue speedy resolution at all costs. In all proceedings, the Tribunal must still act fairly and according to the substantial merits of the case and observe the rules of natural justice.
- Unfortunately, the learned Justices’ reasons do not address Mr and Mrs Walker’s evidence about the issues relating to the conduct surrounding the transaction. Mr and Mrs Walker specifically raised these allegations in their original Application and when Mr Walker gave his evidence during the hearing.
- The Tribunal’s reasons do not explain whether the Tribunal preferred Waterfront’s evidence over Mr and Mrs Walker’s evidence and if so, why, or why the Tribunal did not accept their evidence, or whether their evidence was sufficient to constitute misleading, deceptive or unconscionable conduct. Making findings about these factors is important because they may vitiate an otherwise binding contract.
- A failure to give adequate reasons is an error of law if it amounts to a denial of natural justice:
If a party cannot be confident that the case was understood and properly considered. Then the failure to give adequate reasons is a denial of natural justice.
- Whatever the Tribunal’s findings of fact, the parties must be satisfied that the Tribunal has given them an answer to their issues. Unfortunately, the Tribunal’s reasons were inadequate in not addressing the conduct surrounding the transaction. This is an error of law for which leave should be granted to correct a substantial injustice.
What are the appropriate Orders?
- Although Waterfront filed a ‘Counter-Application’, it was in substance submissions responding to the appeal rather than a Cross-Appeal. Nothing in those submissions raised any error of law by the learned Justices, nor displaces the Appeal Tribunal’s findings about the adequacy of reasons.
- Leave to appeal should be granted and the appeal allowed. The decision of 4 July 2018 is set aside. It is appropriate that the matter be remitted for rehearing before a differently constituted Tribunal, who will be in the best position to assess credibility and make appropriate findings about the transaction and its surrounding conduct upon hearing all the evidence from the parties.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 143(3).
QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41.
Cachia v Grech  NSWCA 232, 2.
QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41.
Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577, 577, 580.
Piric & Anor v Claudia Tillier Holdings Pty Ltd  QCATA 152,  (Wilson J).
Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39.
Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39, .
 QCAT Act, s 28(3)(a).
 Kioa v West (1985) 159 CLR 550, 584-585.
 Creek v Raine & Horne Mossman  QCATA 226,  (Wilson J).
 QCAT Act, s 4(c).
 Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe  QCATA 212,  (Wilson J).
 QCAT Act, s 28(3)(b).
 Ibid s 28(3)(c).
Ibid, s 3, s 4.
Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-126.
Chambers v Jobling (1986) 7 NSWLR 1, 10.
Contract dated 21 February 2018, Email Wal & Victoria Walker to Trevor Martin dated 23 February 2018.
Property Occupations Act 2014 (Qld), s 165(2).
Application for leave to appeal or appeal, Annexure A, paragraphs 4, 27.
Application for leave to appeal or appeal, Annexure A, paragraphs 27, 32.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 121.
Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291,  (Wilson J and Member Ford) citing Phu v NSW Department of Education and Training  NSWADTAP 76, Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430.
Hayward & Anor v LJ Hooker Longreach  QCATA 221,  (Wilson J).
Queensland Civil and Administrative Tribunal Act 2009 (Qld), 28(2).
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a).
Transcript, page 1-5, page 1-6, page 1-7.
Lloyds Bank Ltd v Bundy  QB 326, 339 (Lord Denning MR).
Mistero Pty Ltd v Cann  QCATA 56,  (Senior Member Stilgoe OAM).
Body Corporate for Rosegum Villas v QBCC  QCATA 125, .
- Published Case Name:
Walker ATF Arcana Trust v Waterfront Agents Pty. Ltd.
- Shortened Case Name:
Walker ATF Arcana Trust v Waterfront Agents Pty. Ltd.
 QCATA 98
03 Jul 2019